DR 2

Question 1

Having been served with particulars of claim, the defendant has three options?

Answer 1

• Firstly, it can admit the claim
• Secondly, it can defend the claim
• Thirdly, it can file an acknowledgment of service

Question 2

What happens if D fails to respond to proceedings within the deadlines?

Answer 2

Failure to comply with these deadlines has the potential to lead to sanctions being imposed on the defaulting party.

• The claimant can request or apply for judgment in default – a judgment in the claimant’s favour which means the claimant has effectively automatically succeeded in its claim, without the court ever having considered the merits.

Question 3

‘counting time’?

Answer 3

• Calculating time limits for a particular factual scenario

Question 4

Filing defence time limits?

Answer 4

• In the first instance, the defence must be filed within 14 days of the deemed date of service of the particulars of claim.
• The defendant should file an acknowledgment of service if they need longer than 14 days to prepare their defence or wish to dispute the court’s jurisdiction.
• The acknowledgement of service must be filed within 14 days of the deemed date of service of the claim form, or within 14 days of the deemed date of service of the particulars if the claim form indicates that particulars are to follow.
• Filing an acknowledgment of service extends the time for filing the defence to 28 days from the deemed date of service of the particulars of claim.
• The claimant and defendant can agree an extension of time for service of the defence between them for up to 28 extra days only. On the defendant’s application, the court can grant any extension it considers appropriate.

Question 5

Why acknowledge service?

Answer 5

• if it is unable to file the defence in time and needs longer than 14 days from the deemed date of service of the particulars of claim in which to serve a defence; or
• if it wishes to dispute that the court has jurisdiction to hear the claim.

Question 6

When to acknowledge service?

Answer 6

• The general rule is that the period for filing an acknowledgment of service is:
• where the defendant is served with a claim form which states that the particulars are to follow, 14 days after service of the particulars of claim; and
• in any other case, 14 days after service of the claim form (CPR 10.3).

Question 7

What happens after acknowledging service?

Answer 7

the court will notify the claimant in writing that this has been done (CPR 10.4), and the defendant’s solicitors will often notify the claimant / claimant’s solicitors directly as well.
o The parties will now be able to calculate and diarise the deadline for the filing and service of the defence:
 Defendants need to ensure that the defence is ready and filed by this date (or take further action to extend this deadline if it is not).
 Claimants need to be ready to apply for judgment in default if the deadline expires and no defence is filed and served.

Question 8

When to defend?

Answer 8

• A defendant contesting a claim must file a defence which sets out why the claim is disputed. A defence must be filed at court and served on all parties (CPR 15.6) within the prescribed time limits

Question 9

When may there be a longer period to file a defence?

Answer 9

• where the claim form has been served out of the jurisdiction, longer periods apply depending on which other country is involved (see CPR 6.35/36);
• where a defendant makes an application disputing the court’s jurisdiction, the defendant need not file a defence before the hearing of that application;
• where, before the defence is filed, the claimant applies for summary judgment, the defendant need not file a defence before the hearing of that application (CPR 24.4(2)); and
• where the court makes an order for service of a claim form on an agent of a principal who is overseas, the court will specify the period (see CPR 6.12).

Question 10

Extending time to serve defence?

Answer 10

o The defendant and claimant can agree an extension of time for serving the defence of up to 28 days (CPR 15.5), if (for example) the defendant needs more time to prepare the defence.
o This means that it is possible for the defendant to have up to 56 days from the deemed date of service of the particulars of claim to file the defence without having to apply to the court for permission to extend the time for service.
o If an extension of time is agreed, the court must be notified in writing (but no application to court is required).

Question 11

Applications to court for extension of time to serve defence?

Answer 11

o It is not possible for the parties to agree an extension of more than 28 days. In this situation, the defendant will need to apply to the court for a longer extension to be granted. Similarly, if a claimant refuses to agree an extension of up to 28 days in accordance with CPR 15.5, the defendant will need to apply to the court for an order allowing an extension of time.
o The court will ensure that the overriding objective is furthered in deciding whether to grant an extension of time. The reasons for the extension being needed and the impact of the extra time on the conduct of the claim will be relevant to the court’s decision.

Question 12

Response of ‘money paid’?

Answer 12

o If the defendant is served with a claim for a specified amount of money (eg a debt claim), but has already paid the claimant before receiving the claim, they will respond to the claim with a defence which states that the debt has already been paid.

Question 13

rules provide a simple procedure to deal with the claim when D filed defence?

Answer 13

• When the court receives this type of defence, it sends a notice to the claimant which, in effect, asks the claimant whether the defence is correct.
• The claimant must respond within 28 days and the claim is stayed if they do not do so.
• Whatever their response, the claimant must serve a copy of it on the defendant.
• If the claimant does not wish to continue that is the end of the case.
• If the claimant does wish to continue (because they do not agree that the debt has been paid or because, for example, they still wish to recover interest and costs) the claim will proceed as a defended claim.

Question 14

How and when to admit the claim?

Answer 14

o The admission form is contained in the response pack sent to the defendant with the particulars of claim. There are different versions depending upon whether the claim is for a specified amount (Form N9A), or is a claim for an unspecified amount, non-money or return of goods (Form N9C).
o A defendant wishing to admit the whole or part of a claim completes the relevant admission form and sends this to the court (or to the claimant directly if admitting a specified claim in full) within 14 days of deemed service of the particulars of claim.

Question 15

Admitting the whole of a specified claim?

Answer 15

o Particulars of claim served.
o Claim admitted in full.
o Judgment amount known (debt; court fees; interest; fixed costs]

Question 16

Admitting part of a specified claim?

Answer 16

o “In this situation, the defendant will state the amount of the claim that is admitted, and the balance will remain in dispute. The defendant will need to file a defence in relation to the unadmitted balance of the claim.”
 Particulars of claim served.
 Claim admitted in part.
 3a. Judgment in part (admitted part of debt; interest on admitted part of debt); and
 3b. Defence (dispute part of debt)].

Question 17

Admitting the whole of an unspecified claim?

Answer 17

o “If the whole of an unspecified claim is admitted, judgment on liability can be given. This disposes of liability only and there will be a subsequent hearing and judgment determining quantum”
 Particulars of claim served.
 Claim admitted in full.
 Judgment on liability; quantum still to be decided.

Question 18

Admitting part of unspecified claim?

Answer 18

may admit liability and offer a sum in satisfaction of the claim (CPR 14.7).
o The defendant will indicate, on Form N9C, and,offer a sum in satisfaction, will state the sum offered.

Question 19

Requesting time to pay?

Answer 19

o If the admission amounts to a specified amount of money (ie whole/part of a specified claim or an offer to pay an amount in satisfaction of an unspecified claim), the defendant may make a request for time to pay (CPR 14.9(1)).
o This request is, in effect, a proposal by the defendant to pay by a certain date or by instalments. Both versions of the admission form (Forms N9A and N9C) make provision for this request to be made at the same time as the admission and for the defendant to supply personal financial information (income, outgoings, debts etc). If the defendant is unable to pay immediately, they can also include the reasons for this.
o If the claimant does not accept the defendant’s proposals for payment, the court will determine the rate of payment taking into account the information supplied by the defendant and the objections raised by the claimant (CPR 14.10).

Question 20

Entering judgment following the claim being admitted?

Answer 20

o The claimant will be notified of an admission and has the option to enter judgment against the defendant. A judgment is a ‘final order’ which disposes of the claim. (In unspecified claims, quantum will still need to be determined.) Judgment indicates that the claimant is, either completely or to some extent, the successful party. Claimants, therefore, will ordinarily prefer to have a judgment entered.
o Defendants usually prefer not to have a judgment against them to avoid the possibility of enforcement proceedings, and because most judgments for money will be placed on a public, searchable register (the Register of Judgments, Orders and Fines) for a period of six years, which can have an impact on an individual’s credit rating.
o Depending on the parties’ views (and bargaining positions), they might decide to conclude an admitted claim by way of settlement instead of entering judgment, using an order that stops short of a judgment, such as a Tomlin Order, or by the claimant agreeing to withdraw the claim. If a specified claim has been admitted and paid in full (with interest, court fee and costs) within the 14 day period for responding to the claim, it is unlikely that a judgment will also be entered

Question 21

The amount of the judgment?

Answer 21

o In specified claims, the judgment will comprise:
 the amount of the claim / debt including interest to the date of issue of the claim;
 interest since the date of issue (using the daily rate from the particulars of claim);
 court fees (ie issue fee as shown on the claim form); and
 fixed costs as set out in CPR 45 – there will be an amount of fixed costs as shown on the claim form and an additional amount to be added on entering judgment.
o Credit will be given for any amounts paid by the defendant, leaving a net balance due.
o In unspecified claims, the judgment will be on liability only, so there will be no amount of damages recorded. Instead, the matter will be listed for a subsequent hearing where evidence will be heard on the issue of quantum and the judge will hand down a judgment recording the amount due, including interest and provision for costs.
o Section 35A Senior Courts Act 1981 / section 69 County Courts Act 1984 provide the court with the power to award simple interest on debts due where eg there is no other provision (such as a contractual term) allowing for interest to run.

Question 22

How to enter judgment following a claim being admitted?

Answer 22

o Once the claimant has established that they are entitled to judgment, entering judgment for a specified sum following an admission is an administrative process. There will be no judicial involvement and the claimant simply files the correct paperwork which will be processed by the court staff. There is no hearing.
o The claimant completes a request for judgment and reply to admission form within 14 days of receiving notice of the admission. On this form they will indicate the judgment amount, including interest, court fees and fixed costs, as well as the amount of any payments made by the defendant.

Question 23

How to count time?

Answer 23

• When counting time, the day on which a period begins is never included.
• If the end of the period is defined by reference to an event (for example, a hearing or trial), the day on which that event occurs is not included.
• Where the specified period is 5 days or less, any Saturdays, Sundays, Bank Holidays, Christmas Days or Good Fridays in the time period do not count.
• Where a deadline relates to doing any act at the court office and the deadline for doing that act ends on a day on which the court office is closed, then the act is treated as on time if done on the next day on which the court office is open.

Question 24

Counterclaims?

Answer 24

a claim by a defendant against a claimant pursued in the same proceedings as the main claim by the claimant against the defendant.

o A counterclaim will be based on a cause of action between defendant and claimant. Duty, breach causation and loss will all need to be established.
o The facts that give rise to a counterclaim may also amount to a defence of set off in the main claim, if the legal basis for set off exists.
o The effect of set off is to extinguish the claimant’s claim against the defendant up to the amount of the defendant’s claim against the claimant.
o If a counterclaim is disputed, it needs to be defended in the same way as any other claim.
o The reply is an optional final statement of case in which the claimant alleges any facts in answer to the defence that have not already been included in the claimant’s earlier claim.

Question 25

Counterclaim process?

Answer 25

 The defendant might wish to make a counterclaim.
 This would usually be followed by the claimant serving a defence to counterclaim.
 The claimant might serve an additional statement of case in response to the defence called a reply.

Question 26

• Counterclaims by a defendant against a claimant - classic counterclaim?

Answer 26

a defendant’s counterclaim against the claimant is pursued in the same proceedings as the main claim and is, accordingly, dealt with under the same claim number as the main (substantive) claim by the claimant against the defendant.
o The defendant could, of course, commence an entirely separate claim, but it is usually more convenient for the defendant to combine its counterclaim with the main claim.
o A counterclaim may or may not have anything to do with the claimant’s substantive cause of action against the defendant. However, the parties must be suing/being sued in the same capacities as in the main claim.
o If the court does not think the counterclaim should be heard with the main claim, it can order that the counterclaim be struck out or heard separately

Question 27

Form of counterclaim?

Answer 27

should form a single document with the defence (15 PD 3). It normally follows on directly from the defence (within the same document) and is clearly labelled as a counterclaim. This document is then entitled ‘Defence and Counterclaim’.
o The counterclaim is essentially a particulars of claim by another name. It must therefore comply with the rules on particulars of claim. As mentioned above, it must contain the four necessary elements of a claim: duty; breach; causation; and loss. It should also comply with CPR 16.4 (and the corresponding provisions in 16 PD).
o A court fee will be payable to the court on filing a counterclaim.

Question 28

Set off?

Answer 28

o The facts that give rise to a counterclaim may also amount to a defence in the main claim (ie the defence of set off).
o The defence of set off may be a partial or complete defence to the main claim. It has the effect of ‘extinguishing’ any claim up to the same amount against the defendant.

Question 29

Legal basis for set off?

Answer 29

o Mutual debts: If the claimant and defendant each owe the other money, one debt can be set off against the other debt. Note that this applies to debts, not damages.
o S.53(1) Sale of Goods Act 1979: Where the seller sues for the price of goods sold and delivered, the buyer can set off a claim for breach of implied terms as to quality and fitness for purpose.
o Defective services: Where a claim is made for the price of services, the defendant can set off a claim for damages for poor services.
o Equitable set-off: This has been developed by the courts when it considers that there is such a close connection between the two transactions that it would be manifestly unjust to allow enforcement of one claim without taking into account the cross-claim.

Question 30

• Form of set off?

Answer 30

o The defence of set-off should be set out in the defence part of the Defence and Counterclaim,

Question 31

Time for serving defence to counterclaim?

Answer 31

o There is no requirement for a claimant to acknowledge service of the counterclaim using an acknowledgment of service (CPR 20.4(3)). A claimant’s defence to a counterclaim must, however, be filed and served in accordance with the usual rules for defences (CPR 15). This means, the defence to a counterclaim must be served within 14 days after service of the counterclaim.
o If a claimant wishing to defend a counterclaim fails to serve a defence within the requisite time limit, a judgment in default might be entered by the defendant (CPR 12.3(2)(b)).

Question 32

Form of defence to counterclaim?

Answer 32

o A defence to a counterclaim is very similar to a ‘normal’ defence. Its contents must therefore comply with the usual rules in relation to defences (CPR 16.5 and 16 PD).

Question 33

• Reply?

Answer 33

o A reply is an optional statement of case served by the claimant if they wish to allege facts in answer to the defence which were not included in the claim (CPR 15.8).

Question 34

• When to file a reply?

Answer 34

o Replies are not filed in every case but, if there is one, it should be filed with the directions questionnaire. (The directions questionnaire is a case management document which the court directs should be filed after a claim is defended. Parties are given at least 14 days’ notice of the deadline for doing this).
o This time limit is different in some specialist proceedings (eg Commercial Court claims) so it is necessary to check the relevant rules and court guides if dealing with a specialist claim.
o A reply must be verified by a statement of truth

Question 35

Form of reply?

Answer 35

o As this statement of case is usually being prepared at the same time as the claimant is considering their response to any counterclaim that has been made, the ‘Reply and Defence to Counterclaim’ normally form one document with the defence to counterclaim following on from the reply
o The reply should be the last statement of case in a claim confirms that permission of the court is needed to file any statement of case after the reply

Question 36

additional claims?

Answer 36

• A counterclaim by a defendant against the claimant. (CPR 20.2(1)(a) and 20.4)
• A counterclaim by a defendant against the claimant and some other person. (CPR 20.2(1)(a) and 20.5)
• An additional claim by a defendant against any person (already a party to the proceedings) claiming a contribution or an indemnity. (CPR 20.2(1)(b) and 20.6)
• An additional claim by a defendant against any person (already a party to the proceedings) claiming some remedy other than a contribution or an indemnity. (CPR 20.2(1)(b) and 20.7)
• An additional claim by a defendant against any person (not already a party to the proceedings) claiming a contribution or an indemnity or some other remedy. (CPR 20.2(1)(b) and 20.7)
• An additional claim being made by a party which has itself been joined to the main proceedings pursuant to CPR 20. (CPR 20.2(1)(b) and 20.7)

Question 37

Contribution and indemnity?

Answer 37

• Contribution ‘A right of someone to recover from a third person all or part of the amount which he himself is liable to pay.’
• Indemnity ‘A right of someone to recover from a third person the whole amount which he himself is liable to pay.’

Question 38

Counterclaims against a person other than the claimant?

Answer 38

• If this other party is not already a party to the ‘main’ court action between the claimant and the defendant, the other party will need to be joined into the main claim as a third party so that the defendant’s counterclaim can proceed.
• • For this type of counterclaim the defendant’s counterclaim must be against the claimant and the third party together.
• There must be some connection between the claimant and third party in respect of the counterclaim. (If there was not, the defendant would simply issue an entirely separate action against the third party.)

Question 39

• Permission or no permission for additional claims?

Answer 39

• Classic counterclaim (CPR 20.4) No Permission? If filed at the same time as/with the defence. Permission? If filed at any other time.
• Counterclaims against a person other than the claimant (CPR 20.5). Permission is always required.
• Claimants for a contribution or indemnity from an existing part (CPR 20.6). No Permission? If filed and served at the same time as/with the defence (or – if the additional claim is made against a party added to the main/substantive claim at a later date – within 28 days after that party files its defence). Permission? If filed at any other time.
• Other additional claims (CPR 20.7). No Permission? If the additional claim is issued before or at the same time as the defence is filed. Permission? If filed at any other time.
• Permission is applied for using the ‘normal’ interim application procedure. The Application Notice will be accompanied by a draft order and evidence in support which will include details of the stage the main claim has reached, details of the additional claim, a summary of the relevant facts, explanation of any delay and the name and address of any proposed party (20 PD 2).

Question 40

Counterclaim against a person other than a claimant?

Answer 40

• A claim for a contribution or an indemnity from another party (ie someone who is already a party to the main / substantive proceedings) is made by serving the appropriate notice. There is no set form for making a CPR 20.6 claim (ie no equivalent to the N1 claim form), but an example format is provided on the Court Service website (see PF22).
• If done in circumstances when the court’s permission is not required, the notice is filed and served with the defence.
• If the court’s permission is required, the court will give directions as to when the notice should be served.
• A party upon whom an additional claim is served becomes a party to the proceedings if he was not already a party (CPR 20.10). If an additional claim is served on someone who is not already a party to the proceedings, it must be accompanied by (CPR 20.12(1)):
  · a response pack; and
  · a copy of every statement of case and any other documents that the court directs.
  · A copy of the additional claim form must also be served on every existing party (CPR 20.12(2)).

Question 41

How are parties referred to?

Answer 41

• Claimants and defendants in the original claim should always be referred to as such in the title to the proceedings, even if they subsequently acquire an additional procedural status (20 PD 7.3).
• Additional parties should be referred to in the title to the proceedings in accordance with the order in which they are joined to the proceedings, for example ‘Third Party’ or ‘Fourth Party’ and so on, whatever their actual procedural status (20 PD 7.4).

Question 41

When can a default judgement be applied for?

Answer 41

Default judgment can be applied for by the claimant for judgment against the defendant without trial where
- the defendant has failed to file the acknowledgment of service and/or defence on time
- the claim has not been admitted by the defendant; and
- the defendant has not applied for summary judgment or strike out.

Question 42

Two types of cases for setting aside default judgement?

Answer 42

• There are two types of cases for setting aside default judgment: where the court ‘must’ set aside and where the court ‘may’ set aside.

Question 43

What is default judgment?

Answer 43

Default judgment means applying for judgment to be granted in the claimant’s favour without a trial if the defendant has not responded to the claim by either serving an acknowledgment of service or a defence within the prescribed time limits

Question 44

Cases where C cannot apply for default judgement?

Answer 44

There are some types of claim in which default judgment may not be obtained (CPR 12.2):
 claims for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974
 Part 8 claims
 any other claims where a practice direction provides that the claimant may not obtain default judgment.

Question 45

Procedure for obtaining default judgment?

Answer 45

 Money claims – specified sum>The claimant may file a REQUEST for judgment on the specified form and the application will be dealt with on paper. The court will make a judgment for the amount sought, fixed costs and interest accrued to the date of judgment.
 Money claims – unspecified sum>The claimant may file a REQUEST for judgment on the specified form and the application will be dealt with on paper. The court will enter a judgment for a sum to be decided by the court and will set a timetable leading up to a hearing at which the court will decide that sum.
 Non-money claims>Non-money applications for default judgment (together with a small number of other claims, which are beyond the scope of this element) cannot be decided on paper. Instead the claimant must APPLY for a default judgment hearing to be listed at which the court will hear from the claimant as to why default judgment should be granted and what judgment should be given. The court will then give whatever judgment it considers appropriate.
 Default judgement is a procedural judgement – can file a claim

Question 46

Can interest be included in default judgement?

Answer 46

o A default judgement on a claim for a specified amount of money may include the amount of interest claimed to the date of judgment (CPR 12.7) provided:
 The particulars of claim include details of the interest (as required by CPR 16.4);
 Where statutory interest is claimed (under s.35A of the Supreme Court Act 1981 or s.69 of the County Courts Act 1984), the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; and
 The claimant’s request for judgment includes a calculation of the interest claimed to the date of the request for judgment.
o In any other case, the amount of interest will be decided by the court.

Question 47

Claim against more than one defendant?

Answer 47

o A claimant may obtain a default judgment against one of two or more defendants and proceed with the claim against the other defendants if the claim can be dealt with separately from the claim against the other defendants (CPR 12.9). Sometimes the claim cannot be dealt with separately eg where the claim against the two defendants is ‘in the alternative’, meaning the claimant alleges one (and only one) of the defendants is liable, but does not know which. The success of one claim and the failure of the other go hand in hand, so they cannot be dealt with separately. So the court will deal with the application for default judgment against one defendant at the same time as it disposes of the claim against the other defendants – quite possibly at trial.

Question 48

Setting aside default judgment?

Answer 48

 Cases where the court must set aside judgment (CPR 13.2)> If judgment was wrongly entered> Reasons:
* The time limit for acknowledging service or serving a defence has not, in fact, expired when judgment was entered; or
* An acknowledgment of service or defence had, in fact, been filed on time; or
* Summary judgment or strike out had been applied for before judgment was entered; or
* The defendant had, in fact, satisfied the whole of the claim before judgment was entered or admitted the claim or required time to pay.
 Cases where the court may set aside judgment (CPR 13.3)> If judgment was correctly entered>Reasons the court may exercise its discretion:
* The defendant has a real prospect of successfully defending the claim; or
* It appears to the court that there is some other good reason why judgment should be set aside or varied or the defendant should be allowed to defend.

Question 49

Delay being a factor in default judgements?

Answer 49

o The court must also consider how promptly the defendant made its application to set the judgment aside (CPR 13.3(2)). The need to comply with time limits and to act promptly is an important feature of the CPRs.
o Court’s approach to setting aside: relief from sanctions and Denton
o An application to set aside a default judgment where the court has discretion to set aside is an application ‘for relief from any sanction’ (CPR 3.9). Therefore, the tests for relief from sanctions laid down in Denton and others v TH White Ltd and another, Decadent Vapours Ltd v Bevan and others and Utilise TDS Limited v Davies and others [2014] EWCA Civ 906 (collectively known as Denton) are also relevant.

Question 50

nature of discontinuance?

Answer 50

o Only a claimant can discontinue a claim. The claimant can do so at any time – the claimant is choosing not to pursue the claim against the defendant any further (CPR 38.2(1)).
o The claimant can discontinue part of a claim rather than the whole claim (CPR 38.2(1)). The claimant can choose to discontinue the claim against only one defendant, or against all of the defendants (if more than one) (CPR 38.2(3)).
o Discontinuance has two major consequences:
 It ends the proceedings in relation to the claim / part of claim discontinued (CPR 38.5(2));
* The claimant is liable to pay the defendant’s costs up to the point of discontinuance, unless the court orders otherwise (if the claim is only discontinued in part, then the claimant is only liable for costs in relation to the part which is discontinued)(CPR 38.6).
 In exceptional circumstances the court’s permission is needed to discontinue proceedings – generally when the claimant has already received some sort of remedy, such as an interim injunction or an interim payment (CPR 38.2(2)).

Question 51

Procedure for discontinuance?

Answer 51

• File a notice of discontinuance at court (CPR 38.3(1)(a)) (This must make clear which part of the claim is discontinued (if only part)).
• Serve a copy on every party (CPR 38.3(1)(b))
• Discontinuance takes effect from the date of service (CPR 38.5(1))
• Upon discontinuance, a costs order is deemed to have been made in the defendant’s favour on the standard basis (CPR 38.6 and 44.9(1)(c)).

Question 52

Consent orders?

Answer 52

• Consent orders are signed by all parties and sealed by the court. They can be in the form of a 2-part Tomlin Order or a ‘regular’ order.

Question 53

Types of consent orders?

Answer 53

There are two types:
· A consent order based on a contract: The consent order is evidence of the contract between the parties and, as such, will only rarely be interfered with by the court. Please see ‘Tomlin Orders’ below.
· A consent order NOT based on contract: This consent order is not a contract but simply the parties agreeing terms of settlement in the claim. Such an order may be altered or varied by the court.

Question 54

What happens once a consent order has been entered?

Answer 54

• Once a consent order has been entered, a defence of estoppel may be available if fresh proceedings are brought regarding matters in the agreement, but this will depend on the exact wording of the agreement.

Question 55

Tomlin order?

Answer 55

• A Tomlin Order is a type of consent order. When settling a cause of action, your client might, depending upon the circumstances of its particular case, agree either a ‘standard’ consent order with the other party or a Tomlin Order.
• A Tomlin Order is made up of 2 parts:
  · the first part is the public part and
  the second, the confidential part that contains the detail of the agreement reached between the parties.

Question 56

Why do parties use Tomlin orders?

Answer 56

· the parties wish for the key settlement terms to be confidential; and/or
· when the agreed settlement terms go beyond those that the court could generally order as part of the proceedings. This is why a Tomlin Order contains its schedule; such a schedule is not generally present in a ‘standard’ consent order.

Question 57

Tomlin Order Part 1?

Answer 57

• Looks like any other consent order
• Public
• Contains actions to be taken by the court (and enforceable by the court) eg
  · Stay of proceedings
  · Permission to apply
  · Detailed assessment of costs?
• Any direction for payment of money out of court or the payment and/or assessment of costs must be contained in Part 1, the main body of the order (40B PD 3.5). These directions require action by the court and must therefore be included in the ‘public part’ of the order (as opposed to the ‘private’ schedule).

Question 58

Tomlin Order Part 2?

Answer 58

• Part 2 – ‘Schedule’
• Generally confidential
• Contains terms of agreement – enforceable with a further court order
• Enables parties to include provisions beyond limits of the dispute

Question 59

Putting a consent or Tomlin Order in place?

Answer 59

• Although consent orders and Tomlin Orders reflect the agreement of the parties, they still need the court’s approval. Once the parties have agreed the content of the order, they will need to apply to the court to have the order made.
• If the court does indeed make the order, then the order takes effect like any other court order.
• Sometimes settlement is reached during a period when the claim has been stayed: if that is the case, then the application for the consent / Tomlin Order is treated as an application also to have the stay lifted.

Question 60

Recording a settlement before proceedings are issued?

Answer 60

• It is preferable, and common, for parties to resolve their dispute without the need to issue proceedings at all. If this happens there is no need for either a consent order or a Tomlin order – there are no proceedings to dispose of. Instead, the parties will record their agreement in a settlement agreement – effectively a form of contract.
• A settlement agreement still needs to be very carefully drafted to ensure that it reflects the parties’ agreement. In particular, if one party is giving up the right to bring proceedings in relation to an alleged wrongdoing on the part of the other party, a great deal of care needs to be given to define the scope of the dispute which is being settled (as there are no statements of case to define the scope of the dispute).

Question 61

Consent orders and interim applications?

Answer 61

· A consent order would be drawn up recording the agreement (an extension of 35 days) and both parties would indicate their agreement to this consent order;
· The consent order would be filed at court – ideally when the application notice is filed, but later if necessary;
· the applicant would usually invite the court to consider the application on paper and without a hearing.
* The court is not obliged to approve such a consent order – this is a case management decision, but the fact that the parties are agreed makes approval much more likely.

Question 62

What are parties expected to do regarding requests for further information?

Answer 62

• Parties are expected to make a voluntary request for further information before involving the court.

Question 63

What can a request for further information relate to?

Answer 63

• A request for further information can be made for any matter in dispute in proceedings; it does not have to be in relation to a matter contained in a statement of case.
• Requests should be confined to matters which are reasonably necessary and proportionate to enable the party seeking clarification or information to prepare its own case or to understand the case it has to meet.

Question 64

When can a party make a request for further information?

Answer 64

• A party can obtain further information from the other party to clarify or give additional information in relation to any matter which is in dispute in the proceedings

Question 65

How are requests for further information treated in multi-track claims?

Answer 65

• In multi-track claims, directions setting out the time period for serving requests for further information and responses to them will usually be included in the directions at the first case management conference.

Question 66

Making a request for further information?

Answer 66

• A party is expected to seek information from the other party on a voluntary basis first and should only make an application to the court if the request cannot be resolved (18 PD 1).
• The party seeking information serves a written request on the other party stating a date for a response (allowing the other party a reasonable amount of time to respond).
• The request should be concise and confined to matters which are reasonably necessary and proportionate to enable the requesting party to prepare its own case / understand the opponent’s case.
• The CPR contain instructions as to the format and layout of the request.

Question 67

Responding to a request for further information?

Answer 67

• The response must be written, dated and signed by the party or its legal representative and include a statement of truth (18 PD 2).
• The response must be sent to the other party and filed at court.
• If a party objects to providing a request, it must inform the party who made the request giving reasons for the objection and object within the timeframe set out in the request (18 PD 4). If the request can only be complied with at disproportionate expense, the reasons why must be explained, for example, the request is about matters that are irrelevant, disproportionate, not reasonably necessary or privileged.

Question 68

Request to the court for further information?

Answer 68

• The court can order a party to clarify any matter which is in dispute in the proceedings or give additional information in relation to any such matter where or not the matter is contained or referred to in a statement of case (CPR 18.1)..
• An application to the court would be appropriate where the other party has not responded or has responded with an objection to provide the information (18 PD 1.1).
• The application should be made as an interim application (CPR 23 and18 PD 5). If, the other party has not responded after 14 days have passed, the application can be made without notice to the opponent and the court can deal with the application without a hearing.
• If a court makes an order for further information, the party against whom the order made must file its response and serve its response on the other parties within the time specified by the court. The response must be verified by a statement of truth.

Question 69

• Restriction on the use of further information?

Answer 69

• The court can direct that further information given by a party to another party either voluntarily or pursuant to an order is not be to used for any purpose other than the current proceedings (CPR 18.2).

Question 70

Part 20 claims?

Answer 70

a defendant may wish to make their own claim against a claimant, or to bring
another party into the proceedings. These additional claims are governed by rules set out in CPR Part 20 and are referred to as Part 20 claims.

Counter and additional claims

Question 71

Structure of a defence and counterclaim?

Answer 71

A defence and counterclaim is essentially what the title suggests: a defence and a (new)
claim, set out in a single document. The title to the action remains the same but the heading
will now be ‘DEFENCE AND COUNTERCLAIM’. The document is then sub- divided into two
sections, with the defence outlined at the beginning and the counterclaim following on
immediately thereafter

The first paragraph of the counter claim will simply state that the relevant paragraphs are repeated. The effect of this is that, for example, the existence and terms of the contract are accepted and the defendant’s allegation of breach is also confirmed. The rest of the counterclaim will then set out the allegations of loss resulting from the claimants’ breach.

Question 72

Amending statements of case (within limitation period)?

Answer 72

After filing but before service - Amendments may be made any time.

After filing and service- Only with:
(a) the written consent of all of the parties; or
(b) the permission of the court.

Question 73

Amending statements of case after expiry of the limitation period?

Answer 73

Where the limitation period has ended, the court may allow an amendment only in the
following three circumstances:
a) to add or substitute a new claim, if this arises out of the same or substantially the same
facts as an existing claim;
b) to correct a (genuine) mistake as to the name of a party;
c) to alter the capacity in which a party claims.

Question 74

Structure for additional claims?

Answer 74

• Other claims are started by issuing an N211 claim form which is similar to the ‘normal’ claim form (ie the N1), other than it is buff coloured and contains more room for the details of all the parties to be inserted.
• If such an additional claim is made without the court’s permission, the claim form should be served on the person against whom it is made within 14 days of it being issued (CPR 20.8).
• If the court’s permission is required, the court will give directions as to when the notice should be served.

Question 75

• Where the defendant to an additional claim files a defence, other than to a counterclaim,

Answer 75

the court will arrange a hearing to consider case management of the additional claim

• Notice of the hearing will be given to any party likely to be affected by any order made at it – in most cases this will be all of the parties. The court may treat the hearing as a summary judgment hearing, dismiss the additional claim or give directions on the way any claim or issue should be dealt with, including how the additional defendant will be dealt with at trial.

Question 76

• Will permission from the court before limitation period to amend be granted?

Answer 76

• General principles
  · It is recognised that the general principle is that the court is required to give effect to the overriding objective of dealing with cases justly and at proportionate cost (CPR 1.1).
  · The decision will always involve the court seeking to find a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted. There are a number of cases dealing with this area. Some general principles that have emerged from some of these cases are mentioned below.
• Need to show some prospects of success
  · An application for permission to amend a defence will be refused if it is clear that the proposed amendment has no prospect of success.
  · The court may reject an amendment seeking to raise a version of the facts of the case which is inherently implausible, self-contradictory or is not supported by contemporaneous documentation. A party will also not be permitted to raise by amendment an allegation which is unsupported by any evidence and is therefore pure speculation or invention. The required statement of truth verifying such an amendment could not properly be given.
• Late amendments
• In accordance with the court seeking to further the overriding objective, a late amendment (ie an amendment sought close to the trial date) can potentially cause unfairness in that it might put the parties on an unequal footing or add an excessive burden to the respondent’s task of preparing for trial. The court will therefore be very mindful of this fact when considering permission in these circumstances.
• A late amendment might even put the trial date at risk and cause a postponement of the trial, which is always something that the court will wish to avoid.
• An applicant seeking permission in these circumstances will need to work very hard to convince the court that permission should be given, providing a good explanation as to why they did not apply earlier and must show the strength of the new case and why justice to them, their opponent and other court users requires them to be able to amend.

Question 77

Adding causes of action post limitation?

Answer 77

only in the following circumstances:
- Ø When the court directs that the limitation period will not apply in a personal injury action (s.33 Limitation Act 1980). This provision gives the court a general discretion to disapply that time limit if satisfied that it is equitable to do so.
- Ø The new cause of action is an original set-off or counterclaim (s.35(3) Limitation Act 1980).
- Ø The new cause of action arises out of the same facts or substantially the same facts as are already in issue in the original claim (s.35(5)(a) Limitation Act 1980.
- The court may allow the amendment when the effect will be to substitute or add a new claim after the end of the limitation period, but only if the new claim arises out of the same facts (or substantially the same facts) as a claim in respect of which the party seeking permission to amend has already claimed a remedy (CPR 17.4(2). The onus is on the applicant to show that the proposed amendment falls within this criteria.
- An amendment adding a new duty or obligation on the part of a defendant (or possibly even a claimant) will usually raise a new cause of action so this will be a new claim.
- An amendment adding additional facts or particulars which clarify a duty or obligation which has already been alleged, will not normally be interpreted as raising a new cause of action.
- Ø The court will therefore examine the alleged duty, breach, causation and loss very carefully in order to decide which of the above two categories the proposed amendment comes into. If there is a new distinct allegation, it will be a new cause of action and will need to be justified within the criteria mentioned above as this amendment will add a new claim after the limitation period has expired.
- Ø If the only change is the addition of a further instance of the alleged breach or a new remedy, there will be no additional cause of action.

Question 78

Every statement of case must contain

Answer 78

 - Numbered paragraphs;
 - Pages numbered consecutively;
 - All numbers and dates in figures (eg ‘The property was purchased for £23,000 on 29 March 1965’);
 - Reference in the margin to every document mentioned that has already been filed at court;
 - The name of the person who drafted the document (the statement of case will therefore contain the name of an individual barrister or the firm of solicitors); and
 - A statement of truth

Question 79

Case heading?

Answer 79

o Every statement of case must be headed with the title of the proceedings. The title will be set out as in the example below and must include (7A PD 4.1):
 - the court and/or division in which the claim is proceedings (eg, top left hand corner of the page in capitals ‘IN THE HIGH COURT OF JUSTICE, KING’S BENCH DIVISION’)
 - The number of the proceedings (eg in the top right hand corner ‘Claim number: 20XX-HC-5612’)
 - The full name of each party and the party’s status in the proceedings (eg ‘Charles Corby, Claimant, and Daniel Darwin, Defendant’).

Question 80

Statement of truth?

Answer 80

o Every statement of case needs a statement of truth (CPR 22.1(1)(a)). A party’s statement of case can be used as evidence in the proceedings only if verified by a statement of truth.
o A statement of truth is a formal way of the person signing confirming that they believe that the document is true. If the document turns out to contain a false statement and the person signing the statement of truth does not have an honest belief that the statement was true, then proceedings for contempt of court may be brought against the person signing. This can lead to sanctions within the proceedings, fines and/or imprisonment in serious cases (CPR 32.14).
o The format for a statement of truth to accompany a statement of case is given in the relevant PD.

Question 81

• Examples of statements of truth

Answer 81

o Where the party is an individual:
 “I believe that the facts stated in this claim form are true. “
o Where the party is a company:
 “The defendant believes that the facts stated in this defence are true. I am duly authorised by the defendant to sign this statement…. “
o And in every statement of truth, after the above wording:
 “….I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

Question 82

• The claim form must contain

Answer 82

• the parties’ names and addresses
• brief details of the claim and remedy
• a statement of the value of the claim and;
• where the High Court has been chosen, a jurisdictional endorsement.

Question 83

• Claim form - structure

Answer 83

o The claim form is usually on Form N1 (7A PD 3.1) – so the form dictates the structure and guides the content to be included.

Question 84

• Claim form contents - parties

Answer 84

o claim form must contain the names of the parties and their addresses. The parties must be referred to in a particular way. If a party is claiming or being sued in a representative capacity, the claim form must state what that capacity is – otherwise the people allegedly represented may not be bound by any decision the court makes.
o Examples of names in the correct format are shown below:
 Individual – “Fred Michael Flagston”
 Sole Trader – “Fred Michael Flagstone (trading as Fred’s Café)
 Partnership – If suing the partners as individuals: “(1) Fed Michael Flagstone (2) William Aaron Rouble”. If suing the partners in the name of the partnership “Flagstones (a Firm)”.
 Company – “Rock Limited”
 Limited Liability Partnership – “Rock LLP”
 Trust - “Trustees of the [eg a Pension scheme] OR
 Markus Severn in his capacity as trustee of [name of trust]”
 Deceased person - [where probate / letters of administration have been granted] “Jane Wilson (as administratrix / executrix of John Wilson)”. [Where probate or letters of administration have not been granted “The personal representatives of John Wilson deceased”.

Question 85

• Claim form contents – addresses

Answer 85

o The parties’ addresses are the addresses for service, but the claimant must also indicate an address where it resides or carries on business, if different (16 PD 2.2).

Question 86

• Claim form contents – claim details

Answer 86

o The claimant is required to include brief details of their claim. This should include:
 A concise statement of the nature of the claim. This is a very brief summary of the type of claim. This statement is not to be confused with the particulars of claim, which must either be set out later in the claim form or in a separate document.
 The remedy sought by the claimant. Although this is required, the court has the power to grant any remedy to which the claimant is entitled (not just the remedy sought by the claimant in the claim form). It is not necessary to expressly include a claim for costs (CPR 16.2).

Question 87

• Claim form contents – value of claim

Answer 87

o §Where the claimant is making a claim for money, the claim form must include a statement of the amount claimed (CPR 16.3). The statement of value can be set out in any one of three ways:
 Where the amount of the claim is specified, the statement of value can simply state this amount; or
 Where the amount of the claim is for an unspecified amount (such as a claim in tort for damages), then the claim form can either have: A statement saying: ‘The claimant expects to recover less than £10,000’, ‘…between £10,000 - £25,000’ or ‘…more than £25,000’ (this information is used to provisionally allocate a claim to a track – explained in the elements relating to case management); OR
 A statement saying: ‘I cannot say how much I expect to recover’.
o The court’s power is not limited by the claimant’s statement of value in the claim form; the court can give judgment for whatever amount (if any) it finds the claimant is entitled to (CPR 16.3(7)).
o In a personal injury claim, the claimant must state whether the amount which the claimant expects to recover for pain, suffering and loss of amenity is or is not more than £1,500.
o Sometimes the claimant has a choice whether to issue the claim in the County Court or High Court. If the High Court is chosen in this situation, a special ‘jurisdictional endorsement’ must be included in the claim form (CPR 16.3(5). In relation to a claim for money, if the claim form is to be issued in the High Court it must:
 state that the claimant expects to recover more than £100,000;
 state that some other enactment provides that the claim may be commenced only in the High Court and specify that enactment;
 if the claim is a claim for personal injuries state that the claimant expects to recover £50,000 or more; or
 state that the claim is to be in one of the specialist High Court lists and state which list.
o The effect of the provisions referred to above is that if a claimant is making a non-personal injury claim for over £100,000 in the High Court, it will, when stating the value of the claim in the claim form:
 state the exact amount of the claim; and
 then state that the claimant expects to recover more than £100,000 to comply with CPR 16.3(5).
 NOTE: In working out the value of the claim for the purposes of the statement of value in the claim form, no account is taken of:
* interest;
* costs;
* counterclaims;
* set-off;
* contributory negligence; or
* state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997.

Question 88

• Claim form contents – particulars of claim

Answer 88

o In anything other than very simple cases, the particulars of claim will be a separate stand-alone document. However, there is space to include the particulars of claim on the claim form itself where they are relatively concise eg in a simple debt claim.
o If the particulars of claim are in the form of a separate document this will either:
 Be attached to claim form (in which case the claim form will say ‘particulars of claim attached’ here); or
 Be sent separately to the claim form, up to 14 days after service of the claim form (the claim form will state ‘particulars of claim to follow’).
o If the particulars of claim are served separately from the claim form, they must contain the claimant’s address for service. The claimant’s address for service is normally at the end of the particulars.

Question 89

• Particulars of claim – contents – general

Answer 89

o The particulars of claim must include ‘a concise statement of the facts on which the claimant relies’ (CPR 16.4(1)(a)) and must cover the essential elements of the claimant’s cause (or causes) of action.
o The particulars of claim must therefore set out all the material facts and allegations which, if proved by evidence, would entitle the claimant to the remedy it seeks as a matter of law. In addition, the particulars of claim should set out any facts that ‘tell the story’ and assist the reader in understanding the case, ie background facts.
o In most cases, this will mean that the particulars of claim will need to articulate the material facts and allegations showing a duty owed by the defendant to the claimant, breach of that duty, and that the breach caused recoverable loss. Clearly there are different ways that such matters can be expressed, and the drafting of particulars of claim is more than solely a technical skill.
 Duty>Breach>Causation>Loss

o It is not the purpose of particulars of claim to set out law, evidence or arguments.
 Evidence is provided at a later stage (primarily through exchange of documents and witness statements).
 Law is argued by the advocate in their submissions.

Question 90

• Particulars of claim – contents – specific

Answer 90

 The particulars of claim should set out any claim for aggravated damages, exemplary damages and/or provisional damages, giving the grounds for claiming them (CPR 16.4).
 In personal injury claims, the particulars should include the claimant’s date of birth, details of his/her injuries, and attach a schedule of past and future expenses losses and the report of any expert medical practitioner which is relied on (16 PD 4).
 A claim in relation to the possession, occupation, use or enjoyment of land, or for an injunction or declaration in relation to land, must identify the land and make clear whether it includes residential premises (16 PD 7.1).
 Where the claim is based on a written agreement, it should be attached (with any general conditions which are incorporated) (16 PD 7.3).
 Where the claim is based on an oral agreement, the particulars should set out the words spoken, by whom, to whom, when and where (16 PD 7.4).
 Where the claim is based on an agreement by conduct, the particulars should set out the conduct relied on and state by whom, when and where the acts were done (16 PD 7.5).
 There are detailed rules on the inclusion of information in relation to past convictions, fraud, illegality, unsoundness of mind (16 PD 8).
 Any human rights arguments relied upon / relief sought (16 PD 14) must be included in the particulars of claim.

Question 91

• Particulars of claim – contents – interest?

Answer 91

o A claimant has a right to claim interest on the principal amount being claimed. This is to compensate for the delay in receiving the money due to them (assuming they win the claim). If the claimant does seek interest, a statement to that effect and the details must be set out in the particulars of claim.

o There are two ways of setting out the paragraph(s) claiming interest:
 Calculating exactly the amount of interest claimed; or
 Claiming (‘pleading’) the interest generally.

Question 91

Calculating intertest for particualars of claim - exact calculation?

Answer 91

o This method is only used in practice if the claimant is making a specified claim (ie a debt or a specified/liquidated damages claim). In pleading interest on a specified claim, you would need to set out:
 the applicable percentage rate,
 the dates from/to which interest is being claimed,
 the total amount claimed up to the issue of the claim form, and
 the daily rate of interest thereafter.

Question 92

Calculating intertest for particualars of claim - pleading interest generally?

Answer 92

o This method is used if the claimant is pursuing an unspecified claim, ie where the court has some decision to make on the amount of damages because the parties do not agree the amount. Certain types (or ‘heads’) of damage will naturally fall into this category, eg:
 loss of goodwill or damage to reputation (which can usually only be estimated),
 loss of future earnings or profits, and
 any damages where remoteness, foreseeability and/or mitigation is an issue.

Question 93

• Statutory interest claims - particualrs of claim?

Answer 93

o Where the claimant relies on section 35A Senior Courts Act 1981 in the High Court and section 69 County Courts Act 1984 in the County Court, the following principles apply to the award of interest:
 Generally, the court has a discretion as to whether to award interest, and how much, from the date the cause of action accrued until judgment (or until payment, if before judgment). Different provisions cover interest after judgment (if the judgment sum is not paid), and these are outside the scope of this element.
 In personal injury claims where damages over £200 are awarded, some interest must be awarded unless there are special reasons for not doing so, but the amount is still in the court’s discretion.
 In debt claims, if the defendant pays the whole debt during the proceedings, some interest must be awarded, but the amount is still in the court’s discretion.

Question 94

• Particulars of claim – structure

Answer 94

o Particulars of claim will follow a logical structure setting out the facts supporting the duty, breach, causation and loss, as mentioned above. There are some standard paragraphs and wording that will almost always be included when doing this:
o Start by introducing each party, to help the court understand the context eg “At all material times the Claimant was a professional equities investor and the Defendant was a firm of solicitors. “
o Set out the relevant duty (or duties), including any necessary background facts eg “By a contract dated 24 October 2019, the Claimant and the Defendant agreed that the Claimant would sell to the Defendant computers for the price of £200,000.”
o Specify the breach (or breaches) eg “In breach of the express term of the contract referred to in paragraph 4 above, the Defendant did not pay”
o Plead causation (linked to the breach) eg “As a result of the breach referred to in paragraph 5 above, the Claimant has suffered loss. “
o Set out loss (and interest claim) eg “The Claimant claims the sum of £200,000”

Question 95

• Particulars of claim – structure - Summary of relief

Answer 95

o Before the final formalities such as the name of the firm of solicitors or barrister drafting the particulars of claim and the statement of truth, the particulars of claim closes with a summary of the remedies sought by the claimant. This is also referred to as the ‘prayer’.
o The prayer provides the court and the defendant with a quick means by which to ascertain what the claimant actually wants.
o An example is set out below:
 “AND THE CLAIMANT CLAIMS:
 damages under paragraph 13 above; and
 interest under paragraph 14 above”

Question 96

• Defence – purpose

Answer 96

 React to every point or allegation in the claimant’s particulars of claim; and
 State full details of the defendant’s own case.
o Each allegation in the particulars of claim must be dealt with individually.

Question 97

• Defence contents – general

Answer 97

o As the defence is a response to the particulars of claim, the structure of the substantive defence content will naturally follow how the claimant has pleaded its claim, with any additional defence points being incorporated where appropriate.
o Every defence must include the defendant’s address for service in the jurisdiction (unless an acknowledgment of service has already been filed) (CPR 16.5(8)), and also indicate where the defendant resides or carries on business if the claim form does not contain such information.
o There are also some miscellaneous points that must be included in the defence, specific to particular issues, which will be dealt with later in this element.
o The defendant can do one of three things in relation to each allegation made by the claimant (CPR 16.5(1)):
 Admit the allegation;
 Deny the allegation; or
 Require proof of the allegation.
* Can do multiple of these things in a clause

Question 98

• Defence contents – admitting the allegation

Answer 98

o If the defendant admits the allegation, the claimant does not have to bring any further evidence in support of it.
o A party should admit anything that is not disputed or non-controversial in order to narrow the issues and save costs and time. There can be costs consequences of not admitting something when you should have done so (CPR 44.2(5)(b)).

Question 99

• Defence contents – denying the allegation

Answer 99

o Denials are used to dispute any facts which, if they had occurred, would have been within the defendant’s knowledge.
o If a defendant denies an allegation it must give reasons. If it wishes to put forward a different version of events, it must state its version in the defence (CPR 16.5(2)). It is not acceptable to make a ‘bare denial’, ie to deny an allegation without giving reasons.
o A denial will have the effect that the claimant will have to prove the allegation.

Question 100

• Defence contents – requiring proof

Answer 100

o A defendant can require proof if the defendant is unable to either admit or deny the allegation, because the fact that is alleged is something about which the defendant does not know. The defendant therefore asks the claimant to prove the allegation.
o Sometimes it can be easy to confuse whether you should deny or require proof of an allegation. The way to answer this is to ask yourself what direct knowledge of the facts alleged your client could have had.

Question 101

• Defence contents – failing to deal with an allegation

Answer 101

o It is important to make sure that every allegation in the particulars of claim is dealt with in the defence. Keep in mind that sometimes the same paragraph of the particulars of claim might include more than one allegation, each of which might need responding to differently in the defence.

Question 102

• Consequences for failing to deal with an allegation

Answer 102

• If the defendant omits to deal with any allegation made by the claimant, the defendant will be deemed to admit it, unless it has set out its own case in respect of that allegation, in which case it will be deemed not to admit it, ie to require the claimant to prove it (CPR 16.5(3) and (5)).
• In a money claim, however, it will always be understood that the amount claimed is not admitted unless the defendant specifically admits it (CPR 16.5(4)). It is still good practice to ensure that every allegation set out in the particulars of claim is dealt with in the defence.

Question 103

• Defence contents – specific

Answer 103

 Limitation: this is a defence to a claim - it is not (perhaps surprisingly) a bar to the claim being brought. If the defence of limitation is being raised, the defendant must state the date on which the limitation period is deemed to have expired (16 PD 13.1).
 Disputing the statement of value: a defendant may dispute the claimant’s valuation of the claim. If so, the defendant must state why it disputes it, and what it estimates the value to be (CPR 16.5(6)).
 In personal injury claims, the defendant must state whether it agrees, disputes or has no knowledge of the matters in the schedule of past and future expenses and losses, and any medical report included with the particulars, giving reasons and its own counter-schedule and (if relied upon) medical evidence (16 PD 11).
o Any matters to do with mitigation or reduction of damages must also be stated.
o Set-off: The defendant may claim he is owed money by the claimant, and may wish to rely on this as part of his defence to the claimant’s claim. The defendant is effectively saying ‘I don’t owe you X, because you owe me X, and the two cancel each other out’. If the defendant is able to and wishes to rely on a defence of set-off, it must be set out in the defence.
o Other defences: The defence must also specifically set out any matter which is a defence to the claim or raises issues of fact not included in the claim eg fraud or illegality.
o Any human rights arguments relied upon / relief sought (16 PD 15) must be included in the defence.
o A defendant might also make a counterclaim against a claimant, and if it does so, the defence and counterclaim should normally form one document with the counterclaim following on from the defence. Counterclaims are considered in detail in another element.

Question 104

• Defence – standard structure

Answer 104

o One of the best ways to structure a defence is to respond point by point to the allegations in the particulars of claim, weaving your client’s instructions into that structure. As with the particulars of claim, there are some standard paragraphs and wording that will almost always be included when doing this:
o If the claimant has used any ‘defined terms’ in the particulars of claim it is usual to open the defence by adopting these so consistent terminology can be used throughout the statements of case eg “The definitions used in the Particulars of Claim are adopted”
o The first paragraph of the particulars of claim is usually the introduction of each party. This should not be controversial and therefore can usually be admitted in the defence eg “Paragraph 1 of the Particulars of Claim is admitted”
o The allegations in the particulars of claim will be admitted, denied or put to proof eg “Paragraph 6 of the Particulars of Claim is denied [a reason and alternative version would be given]. The claimant is required to prove Paragraph 7 of the Particulars of Claim. “
o At or near the end of a defence a paragraph often referred to as a ‘general denial’ is usually included. This denies the entitlement of the claimant to the sum, or any part of the sum, being claimed eg “In the circumstances, it is denied that the Claimant is entitled to the amount claimed or any amount”.
o As with all statements of case, the defence will start with the case heading at the top, and will end with a statement of truth.

Question 105

Purpose of reply

Answer 105

to allege facts in answer to the defence which were not included in the claim (CPR 15.8) – the contents will therefore be factual allegations which answer ‘new’ points raised in the defence. There is no particular structure for a Reply.

OPTIONAL

Question 106

o Reply – when to file

Answer 106

• Replies are not filed in every case but, if there is one, it should be filed with the directions questionnaire (the directions questionnaire is a case management document which the court directs should be filed after a claim is defended. Parties are given at least 14 days’ notice of the deadline for doing this)(15 PD 3.2A).
• This time limit is different in some specialist proceedings (eg Commercial Court claims) so it is necessary to check the relevant rules and court guides if dealing with a specialist claim.

Question 107

• Witnesses of fact?

Answer 107

provide direct evidence of what they have perceived with their own senses and there are many rules relating to witness statements

Question 108

three types of admissable evidence?

Answer 108

 Documents - Disclosure is the process by which each party tells the other what documents they have that are relevant to the case. After disclosure, certain documents are available for inspection allowing the other party to physically see the original or a copy.
 Witness evidence
 Real evidence - ‘Real’ items that are adduced as evidence.

Question 109

Two types of witnesses?

Answer 109

• Witnesses of fact: direct evidence by a witness of what they have perceived with their own senses.
• Expert witnesses: evidence of matters of opinion within their expertise.

Question 110

power of the court to control evidence?

Answer 110

. The court has the power to control the evidence by giving directions as to:
 The issues on which it requires evidence
 The nature of the evidence it wants
 The way the evidence is to be placed before the court
- This broad power relates to all evidence, not just witness evidence.
- The court can also:
 Exclude evidence that would otherwise be admissible
 Limit cross-examination

Question 111

What is a witness statement?

Answer 111

• A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally (CPR 32.4(1)).

Question 112

General rule for witnesses and witness statements

Answer 112

any fact which needs to be proved by the evidence of witnesses at trial will be by oral evidence

Question 113

How does a witness statement usually stand?

Answer 113

• A witness statement usually stands as the witness’s evidence in chief at the trial (CPR 32.5(2)). This effectively means that the witness will be asked to confirm the truth of the contents of the statement in the witness box. The principal purpose of the witness’ attendance at trial is to afford the other party’s counsel an opportunity to cross-examine the witness. The witness will then be re-examined by their own party.
   Re-examination clarifies what happened in the cross-examination

Question 114

Exchange of witness statements?

Answer 114

• The court will usually give directions as to the exchange of witness statements at the allocation and case management stage.
• The parties must comply with any direction given for exchange of witness statements. The direction will usually include a date for exchange with the other party (it is not normal to file trial witness statements at court, although this can be ordered, and they will certainly be included in the trial bundles in due course). The direction can also relate to:
   Limiting the issues
   Identifying the witnesses whose evidence may be used
   Limiting the number, length or format of witness statements
   Specifying the order in which witness statements are to be served
• If a party has served a witness statement of a witness and wishes to rely on it, the party must call the witness to give oral evidence at trial or put in the statement as hearsay evidence in accordance with the procedure required by the rules (CPR 33).
• If a witness statement (or witness summary) for trial is not served within the time specified by the court, the witness may not be called to give oral evidence unless the court gives permission (CPR 32.10).
   Could also use a witness summary when a witness refuses to give a witness statement – but would still need consent from the witness
• Exchange of witness statements is generally the step in the action that follows disclosure and inspection (and comes before expert evidence). All the disclosure documents must be reviewed prior to finalising witness statements as the witnesses may need to refer to the documents in their evidence.

Question 115

Extending the time for serving witness statements?

Answer 115

• The parties can agree in writing extensions of up to 28 days for serving (and filing, if that has been ordered) of witness statements without the need for court approval provided any such extension does not put a hearing at risk (CPR 28.4 and 29.5).
• In the event that an extension of time is agreed before witness statements are due to be served which does have an effect on a subsequent key date, an application should be made to the court for the extension under CPR 3 to avoid the risk of the court not approving the agreement at trial. Similarly, if an extension of time cannot be agreed before witness statements are due to be served, an application should be made.
• If no extension is agreed and witness statements are served late, an application would need to be made for relief from sanctions (CPR 3.9). In other words, an application for relief from the sanction that the witness may not be called to give evidence (CPR 32.10). The rules contain circumstances the court is required to take into account when deciding whether to include the witness evidence.

Question 116

Court’s powers in relation to presentation of witness evidence?

Answer 116

• The court retains discretion on the presentation of evidence at trial:
   Rather than the witness statement standing as the only evidence in chief, a witness giving oral evidence at trial may, with the permission of the court, amplify the witness statement or give evidence in relation to new matters which have arisen since the witness statement was served (CPR 32.5(3)). However, the court is unlikely to permit the amplification of evidence that is essentially a late, unjustified change of tack or, for example, to remedy deficiencies as this would create injustice to the other party contrary to the overriding objective (CPR 1.1).
   The court may limit cross-examination (CPR 32.1(3)).

Question 117

• Witness statements for interim applications

Answer 117

• The general rule is that any fact which needs to be proved by the evidence of witnesses other than for trial is to be proved by their evidence in writing (CPR 32.2(1)(b)) – so the witness does not generally ‘give evidence’ in person at the interim hearing and is not cross-examined, the court relies solely on the witness statement. This is fundamentally different to the general rule that applies to trial. However, any party may apply for permission to cross-examine the person giving the evidence (CPR 32.7), although this is very unusual.

Question 118

• Content of witness statements?

Answer 118

• A witness statement should cover every fact that needs to be proved by the witness’ evidence. A witness statement must be in the witness’ own words although it will usually be drafted by a lawyer. The lawyer ‘proofs’ the witness by interview, produces a draft statement and then allows the witness to amend it as appropriate.
• One way of deciding on relevant content is to ask:
   What is the argument?
   What is the legal basis for the argument?
   What are the facts that this witness can speak about that support the legal argument? These are what should be set out in the witness evidence

Question 119

• Inadmissibility of opinion evidence - general rule?

Answer 119

 The general rule is that the opinions of witnesses are not admissible. Witnesses are normally confined to stating the facts. The reasoning behind this rule is that it is the role of the court to form any opinions which need to be formed, and there is a risk that the court may be unduly influenced by the opinion of a witness who may not be as impartial as the court. The court must draw its own inferences from the facts stated.

Question 120

Inadmissibility of opinion evidence - exceptions to general rule?

Answer 120

 Perceived facts; and
 Expert opinion

Question 121

False statements in a witness statement?

Answer 121

• A witness statement must be verified by a statement of truth. A witness who makes a false statement in the witness statement without an honest belief in the truth of that statement, may face proceedings for contempt of court, (CPR 32.14(1)). It is prudent to warn the witness before taking their statement of the implications of signing a false statement of truth.

Question 122

• Prohibition on using a statement in other proceedings

Answer 122

• A witness statement may only be used for the proceedings in which it is served unless the witness or the court has given permission for some other use or it has been put in evidence at a hearing held in public (CPR 32.12).

Question 123

• Form of witness statements?

Answer 123

• A witness statement is always given by a specific individual (not a company or a partnership) and must be signed by that person
• • Witness statement needs to include a heading (32 PD 17.1), e.g.
     “IN THE HIGH COURT OF JUSTICE
     KING’S BENCH DIVISION
     B E T W E E N:
     ROBINSONS LIMITED
     Claimant
     and -
     CASTLETON DELIVERIES PLC
     Defendant
     WITNESS STATEMENT OF CYNTHIA HARBIN”
• …and an endorsement in the top right hand corner including
   Party relying on witness:
   Initial and name of witness:
   Number of statement
   Exhibits
   Date of signing
   Date of translation (if relevant – not here)
• (32 PD 17.2)
   Eg
   “Defendant
   C Harbin
   First
   CH1-2
   01.01.2022”
• Opening paragraphs (32 PD 18.1)
• Witness name
• Witness home address (or position, employer name and address if made in business capacity)
• Occupation
• Fact that witness is a party / employee of a party
• Process through which the statement was prepared (eg face to face / telephone)
• Information and belief paragraph (32 PD 18.2) eg
• “2. I make this witness statement from matters within my knowledge or belief save where the contrary appears. Where I refer to matters of which I have been told by others, those matters are true to the best of my knowledge and the source of the information appears.”
• Statement continues in witness’s own words and language (a translation is provided later if necessary) (32 PD 18.1) eg
• “3. The Defendant entered into the contract which is attached to the claim form in this matter for computer system consultancy services for the Defendant”
• The witness can refer to documents. These should be verified and identified by the witness and remain separate from the witness statement. Where a witness refers to an exhibit or exhibits, they should state ‘I refer to the [description of exhibit] marked [reference]’ as in this example (32 PD 18.3-18.6). eg
• “4. The Defendant is engaged in the supply of goods by mail order and it is crucial that its computer records and despatching systems function efficiently. I refer to my note of the initial meeting attached and marked “CH1”.”
• Witness statement ends with this form of statement of truth, and is always signed by the witness themselves 32 PD 20.1-20.3
• “6. I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
• Signed…..
• Dated……”

Question 124

Witness statements for uses other than trial?

Answer 124

• There are formatting differences in a witness statement prepared for an interim hearing to the one prepared for trial. Essentially, two extra paragraphs should be included.
• One, near the beginning after the information and belief paragraph, confirms the reason for the statement, for example:
• “I refer to the application notice dated [ ] and make this statement in opposition to the claimant’s application for summary judgment.”
• The second extra paragraph is at the end of the witness statement before the statement of truth and confirms what the witness would like the court to do in relation to that interim application, for example:
• “In the circumstances, I submit to the Court for the reasons set out above that the Defendant is not liable for the sum claimed and that the Claimant’s application for summary judgment should be dismissed.”

Question 125

Trial witness statements in the Business and Property Courts?

Answer 125

• In addition to the rules set out earlier in this element, there are additional rules for witness statements (with limited exceptions) where both the following criteria are satisfied:
   the statement is for use at trial (ie not witness statements for interim hearings); and
   the trial is to take place in the Business and Property Courts.
• These rules include:
   The statement must identify what documents the witness has referred to for the purpose of providing the evidence set out in their witness statement.
   As well as a statement of truth, a witness must include a signed confirmation that the witness understands that the purpose of the witness statement is not to argue the case nor to take the court through the documents in the case.
   The statement must include a confirmation from an appropriate legal representative that the rules have been explained to the witness and the representative believes the witness statement complies with them.

Question 126

• Affidavits must be used in an application for

Answer 126

a search order or a freezing injunction, and in any other situation where a rule, order or practice direction requires it.

Question 127

affidavit?

Answer 127

a written statement of evidence that is sworn before a person authorised to administer affidavits (rather than verified by a statement of truth). The content of an affidavit is the same as a witness statement, but the form is different. A person who gives evidence by affidavit it called a deponent. The form of an affidavit must comply with specific requirements

Question 128

What does an affidavit end with?

Answer 128

a jurat. It is a statement at the end of the document which authenticates the affidavit. (Witness statements end with a statement of truth rather than a jurat). It must:
* be signed by all deponents
* be completed and signed by the person before whom the affidavit was sworn (whose name and qualification must be printed beneath)
* contain the full address of the person before whom the affidavit was sworn
* follow immediately on from the text and not be put on a separate page

Question 129

Affidavit structure?

Answer 129

 Reference to ‘affidavit’ instead of ‘witness statement’ in the heading, so it reads “ AFFIDAVIT OF CYNTHIA HARBIN”
 Introduction, with ‘state on oath’ being specific to affidavits, so it reads “ I, Cynthia Harbin, of Tregorran House, 12-16 Deal Plaza, Bournemouth, BH2 5MQ, Managing Director of the Defendant, state on oath:”
 Exhibit wording which is specific to affidavits, so it reads “There is now shown to me marked “CH2” the detailed schedule of these faults”
 Ends with something called a jurat. It is a statement at the end of the document which authenticates the affidavit. (Witness statements end with a statement of truth rather than a jurat). It must:
* be signed by all deponents
* be completed and signed by the person before whom the affidavit was sworn (whose name and qualification must be printed beneath)
* contain the full address of the person before whom the affidavit was sworn
* follow immediately on from the text and not be put on a separate page
 e.g.
* “Sworn at [full address]
* On [Date]
* Before me:
* Signed………………………………………
* Commissioner for oaths”

Question 130

General rule for what makes evidence admissable?

Answer 130

• All evidence that is relevant to the facts is generally admissible.

Question 131

Hearsay?

Answer 131

an oral or written statement made out of court which is being adduced in court to prove the truth of the matter stated.

• Hearsay is indirect evidence, whether written or oral. Hearsay evidence is admissible

Question 132

• Special rules on hearsay?

Answer 132

• If a party intends to rely on hearsay evidence at trial, it must give** notice** to the other party that it intends to do so. The rules specify how the notice should be given (CPR 33.2):

Question 133

When to give notice of intention to rely on hearsay evidence

Answer 133

 If the evidence is in a witness statement of a person who is to give oral evidence at trial, no formal notice is required. Notice of the hearsay is deemed served when witness statements are served on the other party; no separate communication is required.
 If the evidence is in a witness statement of a person who is not giving oral evidence at trial, no formal notice is required but the other party must be informed that the witness will not be giving evidence at trial with reasons.
 In all other cases, formal notice must be given to the other party identifying the hearsay, stating that the party wishes to rely on it and the reason why the witness will not be called.

• If notice is not given when it should have been (usually no later than the latest date for serving witness statements) , the evidence will still be admissible, but the weight the court attaches to it is likely to be less and the offending party may be penalised in costs.

Question 134

• A party has 4 possible options on receipt of a notice of intention to rely on hearsay

Answer 134

 Request particulars of hearsay (s.2 CEA 1995)
 Call for cross-examination (s.3 CEA 1995)
 Challenge the weight of hearsay evidence (s.4 CEA 1995)
 Attack credibility of an absent witness (s.5 CEA 1995)

Question 135

Request particulars of hearsay (s.2 CEA 1995)?

Answer 135

• A party who has received the notice can ‘request particulars’ of the hearsay that are reasonable and practicable for the purpose of enabling it to deal with any matters arising from the evidence being hearsay.

Question 136

Call for cross-examination (s.3 CEA 1995)?

Answer 136

• Where a party adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine them on the statement as if they had been called by the first-mentioned party and as if the hearsay statement was the evidence in chief (CPR 33.4). This could have devasting tactical effects for the adducing party, for example, if the witness is weak. The application must be made no later than 14 days after the hearsay notice was served on the applicant (CPR 33.4)

Question 137

Challenge the weight of hearsay evidence (s.4 CEA 1995)?

Answer 137

• It is possible to challenge the weight the court will attach to the hearsay evidence at trial. The factors the court will consider when assessing the weight to attach to hearsay evidence include, for example:
   (a) whether it would have been reasonable and practicable for the party who adduced the evidence to have produced the maker of the original statement as a witness;
   (b) whether the original statement was made contemporaneously to the matters stated;
   (c) whether the evidence involves multiple hearsay, etc.

Question 138

• Attack credibility of an absent witness (s.5 CEA 1995)?

Answer 138

• Where a person wishes to rely on hearsay evidence but does not propose to call the person who made the original statement to give evidence, the party who has received notice can attack the credibility of the absent witness at trial (even though they are not present). The attack should show that the absent witness made previous inconsistent or contradictory statements. The receiving party must notify the adducing party of its intention to do this no later than 14 days after the hearsay notice was served (CPR 33.5).

Question 139

• Use of plans, photographs and models as evidence

Answer 139

• Hearsay evidence may arise in different forms of evidence. The definition of hearsay evidence includes oral statements and statements made in documents or any other medium in which information of any description is recorded and therefore includes pictorial representations such as plans, photographs and models.
• There are notice rules which must be followed for any evidence that is:
   Not contained in a witness statement or expert’s report;
   Not to be given orally at trial; or
   Not subject to the notice of intention to rely on hearsay provisions discussed earlier in the element.
• (CPR 33.6)
• This includes plans, photographs and models. Unless notice is given, the evidence will not be receivable at trial.

Question 140

• Convictions as evidence in civil proceedings

Answer 140

• In civil proceedings, the fact that a person has been convicted of an offence in a UK court is admissible in evidence to prove that he committed the offence. Proving the offence must be relevant to an issue in the proceedings. This is set out in s.11 Civil Evidence Act 1968.
• In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence—
   he shall be taken to have committed that offence unless the contrary is proved; and
   the contents of any document which is admissible as evidence of the conviction (and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted), shall be admissible in evidence for the purpose of identifying the facts on which the conviction was based.
• This does not mean that a conviction ends the issue within the civil proceedings. Instead, a person wanting to prove the contrary will have the burden of proving that the person convicted did not commit the offence on a balance of probabilities.
• No conviction other than a subsisting one is admissible in evidence.

Question 141

Expert’s duty

Answer 141

• The duty of experts is to help the court on matters within their own expertise.

Question 142

Is permission needed for intented instructions?

Answer 142

No

Question 143

• What is expert evidence?

Answer 143

• An expert is generally a highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise.
• Not all cases require expert evidence. However, the judge often has to consider not just legal issues (their expertise) but also scientific, technical, medical or other issues of which the judge may have no direct experience or knowledge. In such cases the judge can be assisted by expert opinion from practitioners or academics with expertise in the relevant area.

Question 144

General rule on the admissability of expert evidence?

Answer 144

• The general rule is that the opinions of witnesses are not admissible.

Question 145

How is someone determined to be an expert?

Answer 145

• The court ultimately decides who is an expert. The experience of the expert does not need to be formal, but an expert should be suitably qualified and experienced. In practice the solicitor and/or counsel may have to decide what type of expert a particular case needs.

Question 146

• Duty of the court to restrict evidence

Answer 146

• The court has a duty to restrict expert evidence to that which is reasonably required to resolve the proceedings

If the issues are factual and do not require expert evidence, the court should refuse permission for it to be used at trial. The general rule to restrict evidence can be exercised to exclude evidence that would otherwise be admissible to further the overriding objective.
- The court controls evidence by directing the issues on which it requires evidence, the nature of the evidence it requires to decide the issues and the way in which evidence is to be placed before the court

Question 147

Do parties need permission from the court to adduce expert evidence at trial?

Answer 147

Yes (but not for intended instructions)

• A common misconception is that the court’s permission is required to instruct an expert whereas a party may instruct as many experts as it likes, but it needs the court’s permission to rely on expert evidence in the proceedings. The parties usually obtain that permission by seeking a direction from the court at the case management stage.

Question 148

exceptions that allow the court to restrict evidence, the normal procedural rules on expert evidence are disapplied to cases on the small claims track

Answer 148

The exceptions are: duty to restrict expert evidence (CPR 35.1), experts – overriding duty to the court (CPR 35.3), court’s power to direct that evidence is to be given by single joint expert (CPR 35.7) and instructions to a single joint expert (

Question 149

Oral expert evidence limitations for fast track?

Answer 149

oral expert evidence at trial will be limited to:
 one expert per party in relation to any expert field; and
 expert evidence in two expert fields (CPR 26.6).

Question 150

• Applying for permission to use expert evidence?

Answer 150

• When parties apply for permission they must:
   Provide an estimate of the costs of the proposed expert evidence;
   Identify the field in which expert evidence is required and, if practicable, the name of the proposed expert (CPR 35.4(2)).
• This information should be set out on the directions questionnaire.
• The parties should exercise caution if naming an expert in the directions questionnaire because if the court orders a named expert to be used, the party will have to go back to court to obtain permission to use a different expert should there subsequently be any difficulty with using the named expert’s report. In this situation there is a risk of having to allow the other party to see the original expert’s report which could be detrimental to the party’s case.

Question 151

• Duty and role of an expert

Answer 151

• Duty
   It is the duty of experts to help the court on matters within their own expertise and this overrides any obligation to the party instructing the expert (CPR 35.3).
• Role
   The duties and responsibilities of the expert were considered in National Justice Compania Naviera SA v Prudential Assurance Co Limited [1993] 2 Lloyds Ref 68 and became known as the Ikarian Reefer Guidelines also now incorporated into the rules (35 PD 2):
• Expert evidence presented to a court should be the independent product of the expert, uninfluenced as to form or content by the pressures of litigation.
• Independent assistance should be provided to the court by way of objective, unbiased opinion regarding matters within the expertise of the expert witness. An expert should never assume the role of the advocate.
• An expert witness should state the facts or assumptions on which their opinion is based. Experts should not omit to consider material facts which could detract from their concluded opinion.
• An expert witness should make it clear when a question or issue falls outside their expertise.
• If the opinion was not properly researched because it was considered that insufficient data was available, then that has to be stated with an indication that the opinion is provisional.
• If, after exchange of reports, an expert witness changes their mind on a material matter, the change of view should be communicated to the other party, and when appropriate to the court.
• Photographs, plans, survey reports and other documents referred to in the expert evidence must be provided to the other side at the same time as the exchange of reports.

Question 152

• Instructing experts

Answer 152

• The letter of instruction to an expert is not privileged from inspection (CPR 35.10(4)). The court will not, however, require disclosure and inspection of a specific document or allow cross-examination of the expert in relation to those instructions unless it considers that the instructions, as summarised by the expert in the report, are inaccurate or incomplete.
• The purpose of this rule is to try to balance the need for transparency about experts with the need for privilege, especially given the experts’ overriding duty to the court. A party who does not have reasonable grounds for suspecting instructions to be inaccurate cannot use this rule to force disclosure and inspection of the instructions. However, this rule means it is important to take care when providing instructions to an expert.

Question 153

• Expert reports

Answer 153

• Expert evidence is to be given in a written report unless the court directs otherwise (CPR 35.5).
   Privileged until used in court
• If the court gives permission for expert evidence, it will almost always require a report to be produced and served, and this can be relied on at trial.
• The report must be in the form required by the rules and must:
   Be addressed to the court, not the instructing party
   Set out the expert’s qualifications
   Set out details on any material relied on
   Set out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report
   Make it clear which of the facts stated in the report are within the expert’s own knowledge (CPR 35.10(1)-(3) and 35 PD 3)
   Explain who carried out any test or experiment relied on, give the qualifications of that person and say whether this was under the expert’s supervision
   If there is a range of opinion on the matters dealt with in the report, summarise the range of opinion and give reasons for the expert’s own opinion
   Contain a summary of the conclusions reached by the expert
   If the expert is not able to give an opinion without qualification, state the qualification
   Contain a statement that the expert understands their duty to the court and has complied with it, and is aware of CPR 35, 35 PD and the Guidance for the Instruction of Experts. The report should be verified by a statement of truth (35 PD 3.3):
• If an expert submits a draft report to its instructing party before it produces a final version to be adduced in evidence, the earlier draft is generally subject to litigation privilege and is usually therefore privileged from inspection. Privilege will be waived in the final version of the report when it is served.

Question 154

• Exchange of expert evidence

Answer 154

• Experts’ reports must be exchanged with the other side in order to be used at trial. There is usually a direction to this effect at the direction stage. The court can order either simultaneous or sequential exchange.
• Failure to exchange in accordance with the given directions means that the evidence cannot be used unless the court gives permission (CPR 35.13).

Question 155

• Single joint experts

Answer 155

• Rather than each party instructing its own expert, to save costs, the parties can agree to appoint a single joint expert. Even if they do not do so, the court has power to only permit a single joint expert. Pre-action protocols also encourage the use of single joint experts where appropriate.
• Single joint experts are often ordered in small claims track and fast track matters, but are less likely to be appropriate in complex multi-track claims.
• A single joint expert should be copied in to all relevant correspondence. There should be transparency at all times. For example, it might be practical for both parties to co-operate and produce a joint letter of instruction, although if each party gives separate instructions to the expert, it must send a copy to the other instructing party (CPR 35.8).
• If the parties cannot agree who should be the single joint expert, the court can select from a list prepared by the parties or direct that the expert by selected in some other manner.
• Where appropriate the parties to agree directions on the multi track that provide for the use of a single joint expert (29 PD 4)
• Court to give directions for a single joint expert on the fast track unless there is good reason not do to do so (28 PD 3.9).

Question 156

• Questions by a party to experts

Answer 156

• Once expert reports have been exchanged, the rules allow a party to put written questions to the other party’s expert, or to the single joint expert, if there is one (CPR 35.6).
• The following provisions apply:
   Questions can only be put once
   Questions should generally only be for the purposes of clarifying the report
   Questions must be submitted to the expert within 28 days of service of the report
   A copy of the questions must be sent to the other party
   There is no time limit within which the expert must answer questions unless ordered by the court
   Answers to the questions become part of the report
   If the expert does not answer, the court can order that the party who instructed the expert cannot rely on their evidence and or cannot recover the expert’s fees from the other party

Question 157

• Questions by experts to the court

Answer 157

• Experts may submit written requests for direction to the court to help them carry out their task (CPR 35.14). Unless the court orders otherwise, the expert must:
   provide to the party instructing the expert, a copy of any proposed request for directions at least 7 days before filing it at court; and
   provide a copy to all other parties at least 4 days before filing it at court.
• The court, when it gives directions, can direct that a party also be served with a copy of the directions.
• To assist experts, where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the expert (35 PD 8). The claimant must serve the order on the single joint expert.

Question 158

• Discussions between experts

Answer 158

• Where each party has submitted evidence from their own expert, the rules make provision for the court to direct the experts to discuss the various expert issues in dispute (CPR 35.12). This is so that the experts can identify the issues in the case and (where possible) reach an agreed opinion. It is common for the court to exercise this power as it usually saves time and cost at trial. The court can specify the issues which the experts must discuss and direct a joint statement to be produced after the meeting, setting out the issues on which the experts agree and those on which they do not (with a summary of reasons).
• Agreements between experts during discussions do not bind the parties unless the parties expressly agree to be bound. However, parties should give careful consideration before refusing to be bound by such an agreement and be able to explain their refusal should it become relevant to the issue of costs.
• Unless ordered by the court or agreed by the parties and the experts, neither the parties not their legal representatives attend the experts’ discussion. If the legal representatives attend, they should not normally intervene except to answer questions or to advise on the law.
• Before meeting the parties must discuss if an agenda is necessary and if so agree one which helps the experts to focus on the issues which need to be discussed.

Question 159

• Any party who considers that its expert has stepped outside their expertise or who has acted incompetently in reaching an agreement can argue that:

Answer 159

• Any party who considers that its expert has stepped outside their expertise or who has acted incompetently in reaching an agreement can argue that:
• The agreement should not be accepted by the court
• The party should adduce further expert evidence if it felt there was a good reason to suppose that the first expert has modified their opinion for reasons that cannot properly and fairly support their revised decision, and such a procedure is reasonably required to resolve the proceedings.
• The content of discussions between experts should not be referred to at trial unless the parties agree. In other words, they are without prejudice.

Question 160

• Oral evidence at trial and ‘hot-tubbing’

Answer 160

• The court may also grant permission to call the expert to give oral evidence at trial.
• In small claims track and fast track cases, the court will only order the expert to appear at trial to give oral evidence if it is in the interests of justice to do so.
• If the court does give permission to call the expert to give oral evidence at trial, then the claimant will often present all the evidence supporting its case first including, if appropriate, the oral evidence of its experts and then the defendant does the same. However, the court can direct expert oral evidence is given in a different way, eg on an issue-by-issue basis (each side having a turn to call witnesses / experts in relation to that issue) or by hot-tubbing. Hot-tubbing is where some or all the evidence of experts from similar disciplines is given concurrently. In relation to an issue (usually set out in an agenda set by the court or agreed by the parties) the judge will ask the experts, in turn, for their views on the issues on the agenda. The judge may ask questions or invite the other expert to comment and then the judge will invite the parties’ representatives to ask questions.

Question 161

• Unfavourable expert reports

Answer 161

• Options to a party who receives an unfavourable report from an expert instructed by that party or from a single joint expert:
   Put questions to expert (CPR 35.6)
   If there is not a direction for the expert to give oral evidence, seek such a direction from the court
   Seek advice from another expert advisor:
• If the expert’s advice differs substantially from what a party was expecting, the party may seek permission to call another expert, but this is difficult and costly
• If a party is not given permission to call another expert, that party can use the expert advisor to assist in preparing questions for cross-examination
• If a party decides that it would prefer to call a different expert witness, it must seek the court’s permission to do so (CPR 35.4). If a party seeks to adduce the evidence of a second expert, the court will often only allow this on the condition that the first report be disclosed. This seek to prevent a party from ‘expert shopping’ (looking out for the opinion most favourable to its case).
• There might be considerable difficulties in obtaining the court’s permission to adduce a second expert’s report, as well as possible cost sanctions and/or loss of credibility. While the court can permit a party to adduce evidence by a different expert, it should only do so in exceptional circumstances. The mere fact that the original expert has changed their mind after a meeting with the other party’s expert is not usually a sufficient reason for such permission to be granted.
• If a party decides it is not intending to rely on its expert’s report once that report has been disclosed, the other party may still rely on the report at trial (CPR 35.11).
• Ultimately, if an expert’s report is unfavourable, the party should be thinking about the possibility of settlement.

Question 162

• When is the court mostly likely to consider whether to grant permission for a party to rely on expert evidence?

Answer 162

• If the facts are mostly factual the court is unlikely to grant permission
• If the allocation is small claims and fast track the court is unlikely to grant permission

Question 163

• What ‘test’ does the court apply to determine whether to grant permission for a party to rely on expert evidence?

Answer 163

• court has a duty to restrict expert evidence to that which is reasonably required.

Question 164

• To whom does an expert owe an overriding duty?

Answer 164

• To the court
   It is the duty of experts to help the court on matters within their own expertise and this overrides any obligation to the party instructing the expert (CPR 35.3).

Question 165

• What might happen in relation to expert evidence after service of an expert’s report and up to and including trial?

Answer 165

• Once expert reports have been exchanged, the rules allow a party to put written questions to the other party’s expert, or to the single joint expert, if there is one (CPR 35.6)
• Experts may submit written requests for direction to the court to help them carry out their task (CPR 35.14)
• Where each party has submitted evidence from their own expert, the rules make provision for the court to direct the experts to discuss the various expert issues in dispute (CPR 35.12). This is so that the experts can identify the issues in the case and (where possible) reach an agreed opinion.
• The court may also grant permission to call the expert to give oral evidence at trial.

Question 166

Legal burden of proof?

Answer 166

The burden of proof refers to the party’s duty to produce sufficient evidence to establish their
allegation or argument.

Question 167

General rule for burden of proof?

Answer 167

The legal burden of proof lies with the claimant and each fact must be proved unless it is
admitted by the opponent. For example, a claimant alleging breach of contract must prove
that a contract existed between the parties, the defendant broke the relevant express and/ or
implied terms of the contract, and the claimant suffered loss as a result.

Question 168

Exception to the general rule on burden of proof?

Answer 168

The exception to this is where the defendant in civil proceedings has been convicted of a
relevant criminal offence. Under s 11 of the Civil Evidence Act 1968, the burden of proof is
reversed – unsurprising given the higher standard of proof required to obtain a conviction in
the criminal courts. Thus, if a defendant wishes to argue they should not have been convicted
they must prove this, meaning that the legal burden has shifted on this point.

Question 169

When does the burden of proof fall on D?

Answer 169

There are a few occasions where the burden of proof falls on the defendant, for example,
contributory negligence, where the defendant must prove that the claimant’s failure to take
care contributed to the damage suffered.

Question 170

Standard of proof?

Answer 170

balance of probabilities. This
requires the judge to be persuaded that the claimant’s version of events is more likely to
be true than the defendant’s. In simple terms, there must be a certainty of greater than 50
per cent.

Question 171

Relevance?

Answer 171

The starting point is that any evidence included must be relevant. On a practical level, there
is little point in the witness setting out vast amounts of irrelevant material as this will not assist
in deciding the case and will simply prolong the trial unnecessarily. Furthermore, its inclusion
would fall foul of the rules of evidence, which state that:
*
irrelevant material is not admissible.
Relevance is judged by reference to the issues the court is called upon to decide.

Question 172

When is evidence relevant?

Answer 172

Evidence from a witness of fact is admissible when it addresses relevant facts, namely those
which are in dispute and which have to be proved by the party calling the witness. These
should be apparent from comparing the particulars of claim with the defence – the facts not
admitted and denied are in dispute.